The Supreme Court will soon lay down guidelines on deciding child custody cases between non resident Indian parents. V. Kumara Swamy explains how the legal lacuna is affecting the lives of parents and children alike

Seven-year-old Adit-ya Chandran and his mother are hiding somewhere in India. If the Central Bureau of Investigation (CBI) as per a recent Supreme Court order, manages to trace Aditya, he will be handed over to his US-based father.

“My son has not gone to school for the last two-and-a-half years. He has been forced to live like a fugitive by his mother in violation of court orders both in the US and India,” says Dr V. Ravi Chandran, a scientist.

It all began as a custody battle between Chandran and his divorced wife Vijaysree Voora in the US. Things took an ugly turn when Vijaysree, having lost the case in New York to obtain custody of her son, took him and left for India in 2007. The US Federal Bureau of Investigation even filed a case of kidnapping against her. Three years and several court orders later, Aditya remains untraceable. The Supreme Court recently gave the CBI a three-week ultimatum to produce Aditya.

With an exponential increase in the number of divorces among the around 30 million non resident Indians (NRIs) settled abroad, children like Aditya are getting caught in the parental crossfire. What is adding to the problem is the lack of a clear legal policy in India to deal with such cases.

While hearing a similar case of a US-based NRI couple, the Supreme Court recently agreed to come up with guidelines for the lower courts to follow when deciding on cases where a parent removes a child from one country to another without either the approval of the other parent or in violation of a court order.

In yet another such case, Ruchi Majoo was accused by her husband Sanjeev Majoo of abducting their son to India while the custody of the child was being decided in a US court. While a district court in Delhi held that the court was within its rights to hear the case, the Delhi High Court set it aside, ruling that the case was not under the jurisdiction of an Indian court.

When it comes to law suits involving NRI couples, Indian courts have been deciding on a case to case basis. “Courts have given varying and sometimes conflicting decisions on cases of child removal and abductions by parents. We will continue to face such problems until there is a coherent and consistent policy,” says Anil Malhotra, Supreme Court advocate, adding that inter-parent child removal is neither defined nor specified as an offence under any Indian law.

Experts say that India could avoid such inconsistencies if the government signs the Hague Convention on the Civil Aspects of International Child Abduction, which came into force in 1983.

The Hague Convention now has more than 80 signatories. The main objects of the convention are “a) To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

Generally, the aggrieved parent seeking the abducted child applies for a writ of habeas corpus in the Indian court. The court can order custody of a minor at the behest of a parent applying for the same. In the Dhanwanti Joshi vs Madhav Unde case in 1998, the Supreme Court observed that the order of a foreign court “will only be one of the facts” that would be taken into consideration while dealing with child abduction matters.

According to experts, since that 1998 order, irrespective of foreign court rulings, courts in India have gone by the “merits of the matter with regard to the welfare of the children”. “But what is overlooked is the other parent’s rights,” says Malhotra.

Pinky Anand, a Supreme Court lawyer who fought the case on behalf of Chandran, says that fathers find it difficult to get custody of their children in India even if the foreign courts have given them a favourable verdict. “Our courts give preference to the mother even if she has removed her children in violation of courts abroad,” says Anand.

In two back to back reports in 2009, the Law Commission of India asked the government to make the necessary changes to the Indian laws to cater to the increasing number of cases of marital disputes among NRIs. While it asked the government to sign the Hague Convention in its 219th report, it recommended amendments to marriage-related laws in the 218th report.

“I don’t know what is stopping the government from signing the Hague Convention when more than 80 countries have already signed it,” says Sudha Ramalingam, advocate and vice-president of the People’s Union for Civil Liberties (PUCL).

Girija Vyas, chairperson of the National Commission for Women, also urged the India government to sign the Hague Convention, speaking at the Pravasi Bharatiya Divas recently.

“Prolonged custody battles have debilitating effects on children. I am sure the government will take a serious look at the issue soon. Signing the Hague Convention would be a good beginning,” says Shanta Sinha, former chairperson, National Commission for the Protection of Child Rights.

According to Kumar V. Jahgirdar of Child Rights Initiative for Shared Parenting, Bangalore, the lack of a consistent policy in India is having a negative impact on foreign court judgements as well. “Foreign courts are now hesitating to allow parents undergoing divorce proceedings to go to India with their children. They fear that they might never return,” he says.

Even the US government cautions its citizens visiting India. “Once a child has been abducted to India, there are very few remedies. India does not consider international parental child abduction a crime, and the Indian courts rarely recognise US custody orders, preferring to exert their own jurisdiction in rulings that tend to favour the parent who wants to keep the child in India,” states the US department of state in its advisory on the child abduction law in India.

In fact, a law has been in the works since 2007 to deal with all these issues. The Indian Civil Aspects of International Child Abduction Bill, 2007, was to come into force once the government signed the Hague Convention. According to Malhotra, the proposed law would create a central authority that would decide on returning children illegally removed by parents from other countries.

An official of the ministry of overseas Indian affairs says that the government has been holding consultations with various stakeholders on bringing changes to several laws concerning NRIs. Some of the changes that have been discussed include amendments to the Hindu Marriage Act, the Family Law Act or the Passport Act. The proposals include the compulsory registration of NRI marriages, taking into account the wishes of a child in case of a custody battle and cancellation of the passport of an offending NRI spouse.

With the Supreme Court now agreeing to lay down the guidelines, Anand hopes that NRI children getting caught between warring parents will be a thing of the past. “I hope the Supreme Court will ask the government to consider signing the Hague Convention and in the meanwhile lay down rules that the lower courts can follow,” she says.

Though I found a related article representing the 'other side', i did not post it here in the hopes I would reply after SC makes a ruling. SC was to make a ruling on May 7. They had postponed it to May 12.

The Additional Solicitor General had taken special permission from Central Government of India to argue for the mother in SC. As you can see from my comment (ananddad) on this article, this lady was advocating India to sign Hague Convention not too long ago.

At times, we all wonder how people in destination countries react to these abductions. Look at the comment posted in reply to mine. I belong to the exclusive class of "Indian men who have adopted the horrible western lifestyle and turned into shameless husbands to daughters of India and equally shameless fathers to their children who are citizens of the western world by birth". I felt too honored to even respond to the other poster.

« Last Edit: May 09, 2010, 02:17:34 AM by ananddad »

Logged

"In the end, everything will be okay. If it's not okay, then you have not reached the end." -- Unknown.

They want the Hague Convention to protect Indian children from being abducted, not to give back children that Indian mother's abduct. I suppose Indian immigrants don't marry citizens of other country's very often, but imagine if the father in this case wasn't also originally from India or of Indian descent. In my own case the high court in Mexico hasn't even received the case yet. Some high level federal prosecutor also stepped in and requested time to review the case (presumably concerned that Mexico might actually send back a child abducted by a Mexican mother based on the highly unusual return orders I've gotten with a private attorney) Every agency in Mexico seems to be pushing the courts to keep my son -- Social Services, and Federal attorneys who have never so much as talked to me claim that it would endanger my son to take him from his Mexican mother and send him to a foreign father even though my wife committed the grievous mistake of not even claiming she was abused (though she does say I'm extremely agressive and have made comments that indicate a violent personality.) In her case she really believed that Mexico's strong and explicit maternal preference and resentment of US authorities would be enough to keep my son.. and it usually is. Especially if someone takes the court appointed lawyers that the average parent uses. That is, the ones who come from the very same Social Services agency that has opposed my son's return. The biggest problem here is one of ignorance in its various forms. Nationalism, sexism and xenophobia fill the voids that have resulted from a lack of education and awareness of the convention and the broader issue.